Philosophy for a judge

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Perhaps the most telling moment of Sandra Day O'Connor's nearly quarter-century career on the Supreme Court came on her last day. In her opinion on the Kentucky Ten Commandments case, O'Connor wrote that, given religious strife raging around the world and America's success in resolving religious differences, why would we "renegotiate the boundaries between church and state. . . . Why would we trade a system that has served us so well for one that has served others so poorly?"

This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

But that, of course, is the job of the elected branches of government. Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: whether the "system" the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?

O'Connor says that America has negotiated church-state boundaries so successfully that we should not rock the boat. But we went 170 years allowing school prayer and other kinds of public religious expression. Then, from 1960 on, we changed course and systematically stripped religion from the public square. In neither era  school prayer or post-school prayer  was this country particularly given to jihad or pogroms. How, then, does history recommend one negotiated boundary over the other?

Similarly in upholding Roe v. Wade . As the swing vote in Planned Parenthood v. Casey , O'Connor did not want to create yet another social revolution by overturning the blanket abortion right that had been in place for two decades. This is a reasonable social assessment. But equally reasonable is the contrary assessment, offered by Ginsburg (before she ascended to the Supreme Court) that Roe "halted a political process that was moving in a reform direction and thereby . . . deferred stable settlement of the issue."

That is what made O'Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure of was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.

That compounded the problem. In the case of abortion, the result was the immortal proclamation: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life"  a supremely infelicitous definition of the liberty clause that is not just comically cosmic but infinitely elastic.

Such elasticity earned O'Connor the title of "pragmatist," a coveted virtue in Washington. Today it is particularly prized by liberals who are happy with the judicial revolutions of the past half-century and are delighted that an appointee of Ronald Reagan should have upheld them in pursuit of social stability.

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature but also into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court. "The joke," writes professor Mark Tushnet in his book on the Rehnquist court, "was that people could save a lot of time and effort in making laws and filing lawsuits if only O'Connor would answer her phone and let them know what she thought beforehand."

Democrats are demanding that O'Connor be the model for the next Supreme Court appointment. "I urge the President and the Senate," says Sen. Barbara Boxer, "to ensure that her replacement reflects Justice O'Connor's judicial philosophy  mainstream, prochoice, and independent."

But that's not a judicial philosophy. That's political positioning embedded in a social agenda. What we need is a nominee who has a judicial philosophy  grounded in constitutional principles that provide legal guidelines that politicians and citizens can understand and live by. I happen to prefer conservative ("originalist") to liberal constitutional principles. But either is preferable to none.

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